Paul Gordon's blog

SCOTUS Will Hear Latest Contraception Coverage Refusal Cases

The Supreme Court today announced that it will hear several cases involving the accommodation for religious nonprofits seeking to opt out of the Affordable Care Act’s contraception coverage requirement.  This is not a surprise; as People For the American Way Foundation wrote in its Supreme Court 2015-2016 Term Preview:

Under the accommodation, the employers simply tell the insurer or the federal government of their objection, at which point the insurer must offer the coverage separately to employees who want it. This way, the employees can get the coverage without their employers having to contract, arrange, or pay for it.  But some religious nonprofits assert that even the accommodation violates their religious liberty under the Religious Freedom Restoration Act (RFRA).  Under RFRA, no federal law imposing a substantial burden on religious exercise can be sustained unless it is the least restrictive means of achieving a compelling government purpose.

The list of circuit courts that have roundly rejected this argument is long:  The DC Circuit, the Second Circuit, Third Circuit, the Fifth Circuit, the Sixth Circuit, the Seventh Circuit, and the Tenth Circuit.  But in September 2015, the Eighth Circuit ruled in favor of the nonprofits and found the accommodation violated RFRA.  Now that there is a circuit split, it seems likely that the Supreme Court will take up the issue via the appeals from one or more of these circuit decisions.

The premise of those challenging the accommodation is a severe distortion of RFRA and of the very concept of religious liberty set forth by the Court’s hard-right conservatives in the 5-4 ruling in Hobby Lobby.  That law was passed with overwhelming bipartisan support in 1993 as a means to protect the free exercise of religion.  But conservative ideologues have sought to transform RFRA from a shield into a sword, one that they can use to violate the rights of third parties.  The right wing’s enthusiastic embrace of Kentucky county clerk Kim Davis shows just how far they want to extend the reasoning of Hobby Lobby.

Here, the conservatives argue that filling out a form so that insurance companies can know about their legal obligations to provide certain coverage is a substantial burden on the exercise of their religion.  That strained reasoning is a cynical use of religion to deprive women of needed healthcare, an effort to force women employees to live by their employers’ religious strictures rather than their own.  But what the Supreme Court said about the First Amendment in a 1985 case called Estate of Thornton v. Caldor is equally true of RFRA:

The First Amendment . . . gives no one the right to insist that in pursuit of their own interests others must conform their conduct to his own religious necessities. [quoting from a lower court opinion by Judge Learned Hand]

Justice Kennedy, who voted with the Hobby Lobby majority, is likely to be the deciding vote in this case.  His concurrence in Hobby Lobby hinted that he might not go as far as his fellow conservatives in granting people the latitude to use RFRA to deprive others of their rights:

Among the reasons the United States is so open, so tolerant, and so free is that no person may be restricted or demeaned by government in exercising his or her religion.  Yet neither may that same exercise unduly restrict other persons, such as employees, in protecting their own interests, interests the law deems compelling.  In these cases [involving for-profit employers] the means to reconcile those two priorities are at hand in the existing accommodation the Government has designed, identified, and used for circumstances closely parallel to those presented here [the accommodation for religious non-profits].

Given the circuit split on the accommodation for religious nonprofits, the Supreme Court had little choice but to take this issue on.  They do have a choice, however, in how they rule.  Hopefully, a majority of justices will take the first step in restoring RFRA to the law it was intended to be.

How Conservative Justices Are Allowing Corporations To Bypass The Courts

If you ever think that courts don’t matter, ask yourself this: Why are major corporations and arch-conservative judges going to such lengths to prevent you from having your day in court when someone has violated your legal rights?

The New York Times has an in-depth three-part series of reports on arbitration, the system by which ordinary people are increasingly being coerced into surrendering their right to the protections provided by the American judicial system.

Agreements to resolve disputes by arbitration are increasingly becoming a standard part of the all-or-nothing contracts that enormous corporations force individuals to sign as a condition of doing business with them. With private arbitration, you surrender your right to a courtroom with a neutral judge and a wide variety of substantive and procedural protections for all parties.

Instead, the company picks a private arbitrator whose living depends on getting cases from corporate interests. The protections of the court system are cast aside. And you can’t have class action lawsuits, which are often the only way to hold wrongdoers accountable when they harm large numbers of individuals relatively small amounts, so it is often not worthwhile for a wronged party to pursue arbitration.

Contracts have existed for centuries. In theory, they are negotiated by two people or businesses in a process of give-and-take, where both parties fully understand what they are agreeing to. But as anyone who has cable TV or a cell phone can tell you, most contracts we sign are handed to us “as is,” take it or leave it.

If you don’t agree to the terms imposed by some enormous corporation with millions of customers, the cost to you (life without a phone) is a lot more than the cost to the company (the loss of one of millions of customers). With vastly unequal bargaining power, the consumer has little choice but to agree. And, in fact, most people sign consumer contracts or click the “I agree” box online with little to no knowledge or understanding of the agreement.

As the Times reports:

By inserting individual arbitration clauses into a soaring number of consumer and employment contracts, companies like American Express devised a way to circumvent the courts and bar people from joining together in class-action lawsuits, realistically the only tool citizens have to fight illegal or deceitful business practices.

Over the last few years, it has become increasingly difficult to apply for a credit card, use a cellphone, get cable or Internet service, or shop online without agreeing to private arbitration. The same applies to getting a job, renting a car or placing a relative in a nursing home.

By banning class actions, companies have essentially disabled consumer challenges to practices like predatory lending, wage theft and discrimination, court records show.

“This is among the most profound shifts in our legal history,” William G. Young, a federal judge in Boston who was appointed by President Ronald Reagan, said in an interview. “Ominously, business has a good chance of opting out of the legal system altogether and misbehaving without reproach.”

How did we reach a point where individuals can be routinely victimized by large corporations and denied access to the courts to vindicate their legal rights?

To a great extent, the blame can be laid at the feet of five people: The conservative majority of the Supreme Court. Their devastating 5-4 rulings like those eviscerating the Voting Rights Act or allowing billionaires and special interests to spend unlimited money in politics are well known. Less well known are 5-4 decisions in arbitration cases. Particularly notorious are AT&T v. Concepcion, where the conservatives ruled that giant corporations can use arbitration agreements to undermine state consumer protection laws across the country, and American Express v. Italian Colors Restaurant, where the conservatives empowered monopolists to use arbitration agreements to bypass federal antitrust laws.

As if this weren’t bad enough, arbitration is hardly the only weapon corporate interests are using to block their victims from vindicating their rights in court.

In fact, just today, the Supreme Court is hearing oral arguments in Spokeo v. Robins, where corporate interests claim that their victims can’t sue in federal court if their “only” injury is that a right created by Congress was violated.

Last month, the Court heard oral arguments in Campbell-Ewald Company v. Gomez, where a large company argued for the power to terminate a class action suit against it early on by quickly offering a settlement to the lead plaintiff representing the class.

Fair and just courts are vitally important in providing equal justice under the law to those who would otherwise be powerless against the enormous entities who have so much more power and resources. So it is no surprise that those powerful interests are so dedicated to blocking ordinary people from having their day in court.

Reposted from People For the American Way Foundation.

Far Right SCOTUS Isn't Extreme Enough For GOP Presidential Hopefuls

Last night’s Republican presidential debate made clear just how extreme the party has gotten when it comes to the Supreme Court … which means danger to the entire country should one of them have the power to nominate the next one, two, or three Justices.

For instance, Jeb! Bush praised Chief Justice John Roberts,  but suggested that his own Court nominees would have longer records of far-right jurisprudence than Roberts did when he was first nominated by George W. Bush in 2005:

John Roberts has made some really good decisions, for sure, but he did not have a proven, extensive record that would have made the clarity the important thing, and that’s what we need to do.  ... And, I think he is doing a good job.  But, the simple fact is that going forward, what we need to do is to have someone that has a long standing set of rulings that consistently makes it clear that he is a focused, exclusively on upholding the Constitution of the United States so they won’t try to use the bench as a means to which legislate.

Jeb! revealed quite a lot there.  Roberts provided the fifth vote in 5-4 rulings wrecking Americans’ ability to limit money in politics, gutting the Voting Rights Act, giving for-profit corporations religious liberty rights, elevating religious offense as a significant burden on religious exercise, upholding a late term abortion ban, weakening longstanding laws against job discrimination … the list goes on.  And Jeb! thinks Roberts is “doing a good job,” even if his own Justices would be more conservative.

Ted Cruz, on the other hand, angrily focused on the very few times when Roberts did not collaborate with the Republican Party’s efforts to destroy Obamacare.  Cruz blasted John Roberts as insufficiently conservative:

I’ve known John Roberts for 20 years, he’s amazingly talented lawyer, but, yes, it was a mistake when he was appointed to the Supreme Court. He’s a good enough lawyer that he knows in these Obamacare cases he changed the statute, he changed the law in order to force that failed law on millions of Americans for a political outcome.

And, you know, we’re frustrated as conservatives. We keep winning elections, and then we don’t get the outcome we want.

Mike Huckabee made clear what type of Justice he would nominate when the moderator asked if he would apply a litmus test to potential nominees:

You better believe I will … Number one, I’d ask do you think that the unborn child is a human being or is it just a blob of tissue? I’d want to know the answer to that. I’d want to know do you believe in the First Amendment, do you believe that religious liberty is the fundamental liberty around which all the other freedoms of this country are based? And I’d want to know do you really believe in the Second Amendment, do you believe that we have an individual right to bear arms to protect ourselves and our family and to protect our country? And do you believe in the Fifth and the 14th Amendment? Do you believe that a person, before they’re deprived of life and liberty, should in fact have due process and equal protection under the law? Because if you do, you’re going to do more than defund Planned Parenthood

So Huckabee Justices would help right-wing extremists accomplish their longtime dream of eliminating abortion rights altogether.  They would also change U.S. law in keeping with the current conservative project to make it easier for them to disobey laws that offend them religiously, even when it deprives other people of their rights.

The current Supreme Court has done so much damage to our basic rights and liberties, yet it is not conservative enough for Republicans seeking to be the next president.

Cross-posted from People For the American Way's blog.

Conservatives See 2016 As Key To A More Conservative SCOTUS

Four of the nine Supreme Court Justices will be in their 80s during the first term of whoever is elected president next year, meaning he or she could usher in an enormous shift in the Court’s makeup.  The Court issues enormously consequential rulings on numerous issues affecting everyone across the country – LGBT equality, money in politics, workers’ rights, religious liberty, workplace discrimination, abortion rights, and many others.  With the current Court so often divided 5-4, usually tilting toward far-right conservatives, it’s clear that the Supreme Court is perhaps the most important issue in the 2016 presidential election.

You certainly don’t need to persuade conservatives.  In fact, according to press reports, the far-right Judicial Crisis Network is launching a new website and ad campaign to pressure GOP presidential hopefuls ever rightward on the issue of Supreme Court nominations.  A reported in The Hill, the group blasts the arch-conservative Chief Justice John Roberts and very conservative Anthony Kennedy as insufficiently conservative.

“Demand justices with a proven record of upholding the constitution. We can’t afford more surprises,” a narrator says as the video shows the faces of Roberts, Kennedy and former Justice David Souter, who retired in 2009.

The three justices are “examples of bad GOP appointments,” the Judicial Crisis Network said in a statement announcing the advertisements.

[JCN] says it made the $200,000 television and digital ad buys ahead of the Republican presidential debates to get candidates on the record about their approach to Supreme Court picks. The next Republican debate is Wednesday.

The television and digital ads are set to run in Iowa, New Hampshire and Washington, D.C. starting Monday, the group said.

Roberts and Kennedy … not conservative enough?  Along with Scalia, Thomas, and Alito, they formed the five-person majority that gutted the heart of the Voting Rights Act (Shelby County), opened the floodgates to corporate money in politics (Citizens United), twisted religious liberty into a tool to deprive others of their legal rights (Hobby Lobby), and regularly misinterpret and severely undermine our nation’s anti-discrimination laws (Ledbetter, for a start).  True, Justice Kennedy authored the Court’s key opinions recognizing the constitutional rights and basic humanity of LGBT people, but he is no liberal.

If conservative activists succeed in electing a conservative president who wants to drive the currently far-right Supreme Court even farther rightward, the repercussions will be enormous.

But imagine instead if Americans elect a president who wants to restore a high court that recognizes and protects our constitutional and statutory rights to liberty, equality, and democracy … Again, the repercussions for people across the entire country would be enormous.

There is one thing where we agree with the JCN.  As their ad says:

On the most important issues, the Supreme Court decides.  The next president could appoint a new majority to last a generation.

Keep that in mind between now and Election Day.  You can be assured that conservatives will.

Cross-posted from People For the American Way's blog.

Federal Court Rejects Another Bogus 'Religious Liberty' Claim From Religious Right

The Tenth Circuit today released its opinion in Little Sisters of the Poor v. Burwell, becoming the latest federal appellate court to reject the claim that the Obama Administration’s contraception coverage accommodation for religious nonprofits violates their religious liberty.

This is the latest effort by the far right to redefine “religious liberty” and the Religious Freedom Restoration Act (RFRA) to use as a sword to deprive third parties of their legal rights.  Under RFRA, no federal law imposing a substantial burden on religious exercise can be sustained unless it is the least restrictive means of achieving a compelling government purpose.

The Tenth Circuit now joins the DC Circuit, the Third Circuit, the Fifth Circuit, and the Seventh Circuit in rejecting this attack on the accommodation for religious nonprofits.  Notably, all these decisions came after the Supreme Court rewrote the Religious Freedom Restoration Act (RFRA) in the Hobby Lobby case, giving certain for-profit corporations and their owners greater latitude to exempt themselves from laws they find personally offensive.  (The Sixth Circuit also reached the same conclusion, but it is still in the process of reconsidering it to make sure it is consistent with Hobby Lobby.)

The Obama Administration created a process whereby religious nonprofits can exempt themselves from the federal requirement that its employees have certain contraception healthcare coverage: Fill out a form (or now, just send a letter) and let the Department of Health and Human Services know that you won’t be providing it and say who your insurance carrier is, so that officials can inform them of their legal requirements to provide the coverage.  The religious right has called even this accommodation a violation of the religious liberty rights of nonprofits, saying it makes them complicit in the provision of contraception that violates their religious beliefs.

The Tenth Circuit concluded that the accommodation does not substantially burden Plaintiffs’ religious exercise and therefore does not violate RFRA.  The court stated:

The accommodation relieves Plaintiffs from complying with the Mandate and guarantees they will not have to provide, pay for, or facilitate contraceptive coverage.  Plaintiffs do not “trigger” or otherwise cause contraceptive coverage because federal law, not the act of opting out, entitles plan participants and beneficiaries to coverage.  Although Plaintiffs allege the administrative tasks required to opt out of the Mandate make them complicit in the overall delivery scheme, opting out instead relieves them from complicity.

The court does not question the sincerity of the plaintiffs’ assertion that filling out the form violates their religious beliefs.  But it also pointed out that under RFRA, whether a burden is substantial is a legal question that is up to the court, not the plaintiff, to answer:

If plaintiffs could assert and establish that a burden is “substantial” without any possibility of judicial scrutiny, the word “substantial” would become wholly devoid of independent meaning.  Furthermore, accepting any burden alleged by Plaintiffs as “substantial” would improperly conflate the determination that a religious belief is sincerely held with the determination that a law or policy substantially burdens religious exercise.  (internal citation removed)

Whether it’s women’s ability to access their legal right to healthcare or same-sex couples’ ability to exercise their constitutional right to marry, imagine the chaos if people could simply exempt themselves from – and severely weaken – laws they disapprove of by citing their personal religious beliefs.

But that is a recipe for a Balkanized society, not a healthy pluralistic democracy.  Citing a previous case, the Tenth Circuit states: “Law accommodates religion; it cannot wholly exempt religion from the reach of the law.”

This post originally appeared on the blog of People For the American Way.

Justice Ginsburg Tackles Idea That Marriage Definition Has Existed For Millennia

One of the words being bandied about at this morning's oral arguments in the marriage cases was "millennia." One of the anti-equality side's main talking points is that equality proponents are asking the Justices to "redefine marriage," as if marriage has been static in nature for time immemorial. Justice Kennedy raised this issue early in oral arguments. As reported in the Washington Post:

10:06 a.m.: Justice Anthony M. Kennedy, who is believed to be the deciding vote in this case, quickly jumped in with a question about the long-standing view of marriage as between two members of the opposite sex. "The word that keeps coming back to me is ‘millennia,' " he said.

Same-sex marriage has been legal in the United States for only about a decade, since Massachusetts legalized it in 2006, Kennedy said. "I don't even know how to count the decimals," he said. "This definition has been with us for millennia."

Perhaps no one is better qualified to tackle this aspect of the case than Justice Ginsburg. As live-blogged by SCOTUSBlog:

One seemingly striking moment came when Justice Ginsburg spoke of how it was recent changes to the institution of marriage that made it appropriate for gay and lesbian couples -- in particular, it becoming an egalitarian institution rather than one dominated by the male partners who determined where and how the couple would live.

Indeed, the idea of marriage as the voluntary union of two lawful equals is hardly one that goes back millennia, or even to our nation's founding. For much of American history, women who got married actually lost their civil identities as individuals, being seen in the eyes of the law only as the wives of their husbands, who had all the legal rights. In the 19th century, it was considered a major reform to allow a woman to keep her own property in her own name after she married, rather than having it automatically transfer to her husband. A more recent reform is that a wife is not automatically considered to have given consent to her husband for sexual intercourse.

Marriage as it is practiced in our country is hardly millennia old. Much of what defined marriage in U.S. history would today be struck down as violating the rights of women under the 14th Amendment. When a New York court in the 1980s struck down that state's rape exemption that allowed men to rape their wives, the judge opened his opinion with quotation from John Stuart Mill's 1869 essay The Subjection of Women: "Marriage is the only actual bondage known to our law. There remain no legal slaves, except the mistress of every house."

But the court that struck down the spousal rape exemption more than a century after that was written was not engaged in an illegitimate "redefinition" of marriage. It was simply enforcing the 14th Amendment, as the Supreme Court is being asked to do today.

This post originally appeared on the blog of People For the American Way.

Alabama Marriage Mess Shows Dangers Of Distorted 'Religious Liberty' Claims

Across Alabama, local judges are openly defying a federal judicial order to grant marriage licenses to same-sex couples. The New York Times reported yesterday that 44 of the state's 67 counties were not granting licenses. The state is a checkerboard, where gay and lesbian Alabamans are locked out of full citizenship across vast swaths of the state based on the whims of local officials.

As many observers have pointed out, this week's events make Americans recall the state's historic resistance to federal court orders striking down segregation. But they show us an image of the future, as well ... or at least the future as the Far Right would have it.

Emboldened by the Supreme Court's distortion of religious liberty in the Hobby Lobby case, some state legislatures are considering bills that would allow government officials to decline to perform marriages that offend them religiously. A number of states are also considering legislation to let people exempt themselves from anti-discrimination and other laws if compliance would offend them religiously. While misleadingly framed as protecting religious liberty, these bills are really intended to allow discrimination and to let conservatives impose their religious beliefs on others.

So what would America look like if we allowed such massive holes to be poked in laws that are supposed to protect everyone? What if lesbian and gay couples were legally treated as outsiders in their home communities, had fewer legal rights than anyone else in those communities, and had to travel anywhere from another neighborhood to another county to find a bakery willing to make a cake for them, a hotel willing to rent them a room for the night, or an employer willing to grant them spousal employment benefits? What if a woman's ability to find adequate healthcare depended on finding an employer and a pharmacist with compatible religious beliefs? What if people's basic rights varied depending on where they were, and upon the prevailing religious beliefs of people in the area? What would such a religiously balkanized nation look like?

It would look a lot like Alabama does today. And it would be ugly.

For decades, the Far Right has fought tooth and nail to impose their religious beliefs through government fiat. They have fought to prevent gays from marrying, to prevent women from exercising reproductive choice, to have public schools indoctrinate other people's children with their own religious beliefs, ... the list goes on. And when they fail at changing the laws to match their religion, they seek exemptions from those laws in the name of "religious liberty."

As People For the American Way Senior Fellow Peter Montgomery has written in his most recent report, that isn't what religious liberty is about. And it isn't a vision of America that is true to our founding principles.

This piece originally appeared in the Huffington Post.

PFAW Releases New Report On The Right's Efforts to Transform Religious Liberty From A Shield To A Sword

Last June, the Supreme Court gave certain for-profit corporations the right to deny women vitally important (and statutorily required) healthcare coverage that offends their employers' religious beliefs, claiming it was simply protecting the employers' religious liberty. Across the country, right wing extremists are seeking to empower individuals and business owners whose religious beliefs are offended by LGBT equality to exempt themselves from anti-discrimination laws — again, supposedly in the name of religious liberty. Conservative Christians aggressively seeking to deprive others of their legal rights regularly portray themselves as the victims of religious persecution.

People For the American Way has released a new report examining the many ways that religious liberty issues are increasingly coming up in public policy debates in communities across the nation. But this isn't religious liberty as it has been understood throughout our nation's history.

Authored by Senior Fellow Peter Montgomery, Religious Liberty: Shield or Sword? examines how the Far Right is working to transform this core American value from a shield protecting individuals' religious freedom into a sword that harms other people and undermines measures to promote the common good.

The report provides vital factual background and analysis to help readers better understand how religious freedom principles have traditionally been regarded, as well as how they are being twisted by a far right movement in an effort to reverse its fortunes as their substantive arguments are increasingly rejected by the American public. These distorting efforts come from conservative advocacy organizations, state and federal legislators, and even a narrow majority of the United States Supreme Court.

This report is an important tool to help understand and confront the Right in public policy debates across the country, as they increasingly seek to use religious liberty as a sword to deny rights to others, and as they continue to portray themselves as victims of religious persecution.

Ted Cruz Vows to Damage Texas Courts in Response to Obama's Immigration Action

In response to President Obama's upcoming action on immigration, Texas Sen. Ted Cruz has vowed to retaliate by sabotaging the federal court system in his own state.

No, that's not how he phrased it, but that would be the impact of his vow. Yesterday in Politico, Cruz wrote how he thinks the Senate should respond to the president's policy decisions on immigration enforcement:

If the president announces executive amnesty, the new Senate majority leader who takes over in January should announce that the 114th Congress will not confirm a single nominee—executive or judicial—outside of vital national security positions, so long as the illegal amnesty persists.

While such a refusal to perform one of the basic functions of the Senate would harm the entire nation, the damage in Texas would be particularly severe. No state has more judicial vacancies than the Lone Star State. No state even comes close.

As of today, Texas is suffering from eleven current federal court vacancies, with another four known to be opening in the next few months. The White House has worked closely with Sens. Cruz and Cornyn to identify potential nominees, but progress has been slow: Only six of the vacancies even have nominees; three of these have not yet had their committee hearings.

But the other three – for the Eastern and Western Districts – advanced through the Judiciary Committee this morning and are now ready for a confirmation vote by the full Senate. All three would fill vacancies formally designated as judicial emergencies by the Administrative Office of U.S. Courts. Confirming them would be a good start at addressing the vacancy crisis in Texas.

And that's what is it: a crisis. As we wrote earlier this month in a Huffington Post piece entitled Lame Duck Opportunity and Obligation: Confirm Judges:

The situation is even more dire in Texas, where the Senate has a chance to fill three vacancies in the Eastern and Western Districts. The Western District judgeship has been vacant since 2008, and the Judicial Conference has asked for five new judgeships there to carry the load on top of filling all the existing vacancies. Chief Judge Fred Biery discussed the need for new judges last year, saying, "It would be nice to get some help. We are pedaling as fast as we can on an increasingly rickety bicycle." Judge David Ezra, formerly of Hawaii, explained why he was moving to Texas to hear cases in the Western District: "This is corollary to having a big wild fire in the Southwest Border states, and fire fighters from Hawaii going there to help put out the fire."

The Eastern District of Texas is in similar need of getting its vacancies filled during the lame duck: Of the nation's 94 federal districts, only two have had more weighted filings per judgeship than the Eastern District, according to the Administrative Office of U.S. Courts' most recent statistics. Small wonder, then, that the Judicial Conference has asked for two new judgeships there: Even if every judgeship were filled, that just isn't enough. To make matters worse, two more judges in the Eastern District have announced their intention to retire or take senior status next year, making it all the more important to fill the current vacancies now.

Even if the three nominees are confirmed during the lame duck, as they should be, more vacancies in both of those districts will open up early next year. Texas would still have eight vacancies, a number that would rise to twelve in the next few months.

To express his fury at President Obama and rally his right-wing base, Cruz would work to make sure that all these vacancies remain unfilled, which would hurt a lot of innocent Texans.

Cross-posted from the PFAW blog.

Hobby Lobby Opens Up A Minefield

With a far-right Supreme Court majority ruling in Hobby Lobby 5-4 that for-profit closely-held corporations have religious rights under the Religious Freedom Restoration Act (RFRA), Justice Ginsburg is rightly warning that the Court has "ventured into a minefield."
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